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No court upon review could say, as a legal conclusion, that, under such circumstances, a judgment which ignored such testimony was illegal."' "Second. Because the court instructed the jury that:

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'If, however, you are of the opinion that the transaction was one which Lucius intended to reserve a control over these bonds, during his lifetime, and that that accounts for the fact that this box was rented, not only in the names of his two brothers, but in his own as well-if you are of opinion that he intended to retain a control over these bonds during his lifetime and to assert the right of cutting off these coupons from time to time during his lifetime, as they matured, then Lucius did not part with all control over them and he did not make a valid gift. It may be that he intended that the honds should go to John after his death, and if that is what he intended then the gift is vold, and your verdict should be for the plaintiff, because he could not give the bonds in that way except by will.'"

We think the language used by the learned trial judge, as recited in the first assignment, while quite accurately stating, as an abstract proposition, the rights and duty of the jury in regard to credible, unimpeached and uncontradicted testimony, was on the whole, when taken in connection with the allusions made to the testimony of Charles Beaumont, calculated to prejudice the jury unduly against the plaintiff in error. We do not think that any inference could have been drawn by the jury from this part of the charge, other than that, in the opinion of the learned trial judge, the testimony of Charles Beaumont should be considered as inherently improbable, and that the truth of his story had been shattered by cross-examination, and that they were justified in rejecting it. A careful reading of this testimony has not disclosed to us any ground for such an inference. We do not discover that there is inherent improbability in the story of Charles, or that that story has been shattered by cross-examination. Although the trial judge does not directly assert these things, it seems to be suggested by the manner in which the instruction is framed.

The part of the charge recited in the second assignment, is open to the criticism we have already made in the other case, of the view apparently taken by the learned trial judge, of what is requisite to a gift inter vivos. We do not think that, even if there was evidence that Lucius intended to reserve such a control over these bonds during his lifetime, as would enable him to assert his right of cutting off the coupons for interest from time to time, he thereby invalidated the gift of the bonds which he evidently intended to make to his brothers. We need not again discuss what we consider as essential or nonessential to the making of such a gift as was intended to be made by Lucius to his brothers, according to their testimony. It suffices to say that we think that the instruction excepted to was calculated to give the jury the erroneous impression that, if Lucius Beaumont asserted the right of cutting off these coupons from time to time, during his lifetime, and for that purpose had reserved to himself the right of access to the box in which they were placed, under the circumstances shown by the evidence, there was no valid gift of the bonds. It is true that the instruction is prefaced with the assumption that the jury should be of the opinion that the transaction was one in which "Lucius intended to reserve a control over these bonds," but the evidence of that control, as put by the learned trial judge, was made to appear to the jury to be the right asserted by Lucius (which was not denied by the donees

of the bonds) to take the coupons out of the box from time to time, whether they were those which were cut off by the brothers and handed to him after the gift, or those which were still attached to the bonds.

The last sentence of the part of the charge recited in this second assignment, was also, we think, likely to unduly influence the jury against the defendants. The line of demarcation between gifts in presenti and inter vivos, and those which are intended to take effect at the death of the donor, and which are invalid by reason of their testamentary character, is often so shifting and uncertain, that it would seem that a jury, if they wanted the plaintiff in this case to succeed, could easily avail themselves of this alternative presented by the trial judge, however far that might have been from his purpose. We do not think the testimony in the case justified the suggestion, and if it had, the difference between the two transactions should have been more clearly distinguished and guarded. It is not without significance that the trial judge did not himself seem to have been able to escape the conclusion, that there was an intention on the part of Lucius that his brothers should have the ownership of these bonds, if he could have the interest thereon for his life. We do not think that this clear intention on the part of Lucius Beaumont should be or can be defeated by the technical suggestion of so construing the gift intended to be made, as that it should be void as an attempted testamentary disposition of the bonds. There is no testimony as to what occurred between the three brothers in relation to these bonds, except that of the two brothers, who undeniably had possession of them at the death of Lucius, and the important corroborating testimony of Carter, the custodian of the safe deposit vault, in the suit against Charles. If the story of the two brothers is to be accepted, there was a valid gift in presenti to them, by Lucius, of the bonds in question, reserving to himself, by condition subsequent, the right to the interest coupons thereon during his life, or stipulating with his brothers, after the gift, that they should, from time to time during his life, detach these coupons and deliver them to him. But if this story is not to be accepted, as told, it seems to us it must be rejected in toto, as it is not susceptible of a different interpretation from that above given.

The judgment below in each of these cases is therefore reversed, with instructions for the award of a venire de novo.

In re FIRST NAT. BANK OF BELLE FOURCHE et al.
(Circuit Court of Appeals, Eighth Circuit. March 19, 1907.)

No. 69.

1. BANKRUPTCY-MANUFACTURING CORPORATION-BUILDER OF CONCRETE ARCHES AND BRIDGES IS.

A corporation which is principally engaged in building concrete arches and bridges and dressing stone is a manufacturing corporation, and may be adjudged a bankrupt under section 4b of the bankruptcy law (Act July 1, 1898, c. 541, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3423] as amended by Act Feb. 5, 1903, c. 487, § 3, 32 Stat. 798 [U. S. Comp. St. Supp. 1905, p. 683]).

[Ed. Note.-What persons are subject to bankruptcy law, see note to Mattoon Nat. Bank v. First Nat. Bank, 42 C. C. A. 4.].

2. SAME PLEADING--DEFECTIVE PETITION GOOD IN SUBSTANCE, IMPREGNABLE AFTER JUDGMENT.

After verdict or judgment, an objection that the petition fails to state facts sufficient to constitute a cause of action is tenable only when the pleading fails to allege the substance or foundation of a cause of action, and it is impregnable to attack because it is otherwise defective, informal, indefinite or incomplete, and was demurrable before answer or judgment. The averment that the alleged bankrupt was a corporation “engaged in the business of manufacturing concrete arches and bridges, manufacturing and dressing stone and selling the same, and railroad and ditch contracting," was demurrable, and amendable before, and invulnerable after, adjudication.

[Ed. Note. For cases in, point, see Cent. Dig. vol. 39, Pleading, §§ 1451, 1459.]

3. SAME JURISDICTIONAL FACTS-WHAT ARE-WHAT ARE NOT THOSE OF LATTER CLASS CONCLUDED BY JUDGMENT-OCCUPATION OF CORPORATION OF THIS CLASS.

Jurisdictional facts are those which condition the power of the court to decide some of the issues in the case, like the nature of the subjectmatter and the service of process. Other facts, which condition the character of the decree or the nature of the relief that should be granted or denied, are not jurisdictional, and final adjudications of issues relating to them conclusively estop the parties to the proceedings from again litigating them.

The issue whether or not a corporation is subject to adjudication as a bankrupt is not jurisdictional, and is concluded by the adjudication.

4. JUDGMENT-FEDERAL COURTS-JUDGMENTS OF FEDERAL COURTS CONCLUSIVE -ABSENCE OF APPEARANCE OF JURISDICTIONAL FACTS ON THEIR RECORDS IMMATERIAL.

While the jurisdiction of the national courts is limited, they are not inferior courts, and their judgments possess every attribute of finality and estoppel appertaining to those of courts of general jurisdiction. The absence from their records of all appearance of jurisdictional facts is immaterial.

5. SAME-MOTION TO VACATE ADJUDICATION-ABUSE OF DISCRETION.

There was no abuse of discretion in a denial by a bankruptcy court of a motion by creditors to vacate the adjudication of the bankruptcy of a corporation and to permit them to answer and litigate the question whether or not the corporation was principally engaged in such a pursuit that it was subject to be adjudged a bankrupt, where the motion was first made 7 weeks after the petition was filed and receivers were appointed, and 5 weeks after the adjudication, when the creditors were aware of the filing of the petition within 48 hours thereafter, and the administration of the estate had proceeded without objection meanwhile. (Syllabus by the Court.)

On Petition for Review.

Arnold L. Guesmer (Rome G. Brown, Charles S. Albert, and T. W. La Fleiche, on the brief), for petitioners.

Harrison L. Schmitt (John W. Schmitt, William A. Kerr, and Charles R. Fowler, on the brief), for respondents.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

SANBORN, Circuit Judge. This is a petition of creditors to revise in matter of law the proceedings of the District Court which resulted in a denial of their motion to vacate the order of adjudication of the bankruptcy of the Widell-Finley Company, a corporation, and to permit them to file an answer and to litigate the issue whether or not that corporation

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was principally engaged in any pursuit which subjected it to adjudication as a bankrupt. On February 14, 1906, certain creditors of the Widell Company filed a petition against it for such an adjudication, and on February 26, 1906, it was adjudged a bankrupt by default upon this petition. On the day the petition was filed receivers of its property were appointed, and thereafter proceeded to manage its estate, until on March 17, 1906, at the first meeting of creditors, a trustee was appointed. On April 9, 1906, the petitioners filed their motion. There was a hearing upon it on April 16, 1906, it was denied on May 11, 1906, and the order of denial is assailed by the petition for revision. Between the date of the filing of the petition and the date of the filing of the motion of the petitioners to vacate the adjudication, the receivers made agreements with certain parties, with whom the Widell Company had contracts, relative to the completion of unfinished work, which were approved by the court on February 19, 1906. The trustee was appointed and with the approval of the referee he sold and delivered to the purchasers the office furniture and stationery of the bankrupt in its main office.

On February 15, 1906, the petitioners knew that a petition in bankruptcy had been filed against the Widell Company, and before the 26th day of February, 1906, the day of the adjudication, they were aware that receivers had been appointed. But none of them took any steps. to challenge or answer the petition in bankruptcy, or to oppose or avoid the adjudication, until the 9th day of April, 1906. They were creditors of the Widell-Finley Company. They knew, the next day after the 14th of February, that a petition in bankruptcy had been filed against it. The bankruptcy law prescribed the time within which they were permitted to challenge that petition for insufficiency in law or for misstatements of facts. Section 18b, 30 Stat. 551, c. 511 [U. S. Comp. St. 1901, p. 3429], as amended by Act Feb. 5, 1903, c. 487, § 6b, 32 Stat. 798 [U. S. Comp. St. Supp. 1905, p. 685]. That time expired on February 25th. They filed neither demurrer nor answer, and on the next day the corporation was adjudged a bankrupt. Their right to demur or answer to the petition then ceased, and their motion for a removal of their default and for leave to answer demanded the enforcement of no right, but merely invoked the judicial discretion of the District Court. The petition for revision does not invite the exercise of the discretion of this court; for the discretion to grant or refuse the motion was not intrusted to us, but to the court below, and in the absence of a manifest abuse of its exercise of that discretion it is not reviewable here.

Counsel for the petitioners insist that the court below abused this discretion (1) because the petition for the adjudication failed to show that the Widell Company was one of the class of corporations judicable in bankruptcy, but disclosed the fact that it was not so and hence they insist that the court was without jurisdiction; (2) because the record after the adjudication disclosed the same state of facts, and hence, as they contend, that the judgment was vulnerable to collateral attack and everywhere void; and (3) because the answer alleged that the Widell Company was not judicable in bankruptcy, and hence, as they insist, that the court was without jurisdiction. "Any corporation en

gaged principally in manufacturing, trading, printing, publishing, mining or mercantile pursuits, owing debts to the amount of one thousand dollars or over may be adjudged an involuntary bankrupt upon default." Bankr. Act July 1, 1898, c. 541, § 4b, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3423], as amended by Act Feb. 5, 1903, c. 487, § 3, 32 Stat. 797 [U, S. Comp. St. Supp. 1905, p. 683].

The pertinent averment of the petition for the adjudication was that the Widell Company "is, and during all said time has been, engaged in the business of manufacturing concrete arches and bridges, manufacturing and dressing stone and selling the same, and railroad and ditch contracting." The word "manufacturing" is a generic term of broad significance, advisedly used by Congress to include many species of corporations, and its comprehensive meaning ought not to be whittled away by fine distinctions. Derivatively meaning making with the hand, its ordinary significance is producing a new article of use or ornament by the application of skill and labor to the raw materials of which it is composed. Pin makers, pen makers, shoe makers, furniture makers, lumber makers, steel makers, boot makers, rail makers, engine makers, cement makers, are undoubtedly engaged in manufacturing, and the cogency of the argument that a corporation which makes a pin is manufacturing, while one which makes a bridge is not, fails to appeal to our judgment with convincing force. The latter may make the cement or the steel it uses in its structure. If so, it is engaged in manufacturing the cement or the steel, and, whether it makes them or not, it produces a new and useful article, a bridge, when by the application of skill and labor to the materials of which it is composed it constructs it.

As usual in respect to every question which involves the construction or operation of the bankruptcy law, there is a conflict of authority. Butt v. C. F. MacNichol Const. Co., 140 Fed. 840, 72 C. C. A. 252; In re Minnesota & A. Const. Co., 60 Pac. 881, 7 Ariz. 137; In re Smith, 2 Lowell, 69, Fed. Cas. No. 12,981; In re Tontine Surety Co. (D. C.) 116 Fed. 401. But the more persuasive reasons and the weight of the decisions support the view, and our conclusion is, that a corporation principally engaged in constructing concrete arches and bridges and in dressing and selling stone is engaged in a manufacturing pursuit and subject to adjudication in bankruptcy upon an involuntary petition. Columbia Iron Works v. National Lead Co., 127 Fed. 99, 102, 62 C. C. A. 99, 102, 64 L. R. A. 645; In re Niagara Contracting Co. (D. C.) 127 Fed. 782; In re Marine Const., etc., Co., 130 Fed. 446, 64 C. C. A. 648; In re Matthews Consolidated Slate Co., 144 Fed. 737, 738, 75 C. C. A. 603; In re Quincy Granite Quarries Co. (D. C.) 147 Fed. 279; In re H. R. Leighton & Co. (D. C.) 147 Fed. 311, 313; In re Troy Steam Laundering Co. (D. C.) 132 Fed. 266; White Mountain Paper Co. v. Morse & Co., 127 Fed. 643, 644, 62 C. C. A. 369, 370.

The concession is freely made that a demurrer or an objection to evidence, before the adjudication, upon the general ground that the petition for it did not contain a clear averment that the corporation was principally engaged in manufacturing concrete arches and bridges and dressing stone, would have been well taken. But, if either of them had been made and sustained, the petition would have been immediately

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